Google has filed its Answer with Counterclaims [PDF] to Oracle's patent and copyright infringement complaint, and how! It's a very aggressive and confident response to Oracle's complaint. Google asks that Oracle's complaint be dismissed, for a judgment in favor of all its counterclaims, for a declaratory judgment that Google has not infringed or contributed to any infringement of any of the patents, a declaration of the invalidity of all the Oracle patents, and a declaration that all Oracle's claims are barred by laches, equitable estoppel and/or waiver, and unclean hands. It wants Oracle to have to pays its costs and expenses of this litigation, including Google's attorneys' fees and expert witness fees, asking for a judgment that this is an exceptional case warranting it.

Google also filed a motion to dismiss [PDF] the copyright infringement claim, Claim VIII, or for a more definite statement. The complaint doesn't tell them what exactly they are supposed to have done wrong, Google says. They'd like to know. Android has over 11 million lines of code, so where does Google look to find the alleged infringement? It's an operating system, so there are a lot of components, and so it could be code, documentation, specifications -- so what is it precisely Google, or others, supposedly did wrong?

Do we have any volunteers in the San Francisco area who can attend hearings as this goes forward? The motion to dismiss is set for a hearing on November 18th, so if you can volunteer, email me please, and I'll fill you in with what you need to know.

Let's take a look at both filings. And I have the motion to dismiss as text.

The Answer with Counterclaims:

Here is the specific language in the relief section, showing what Google asks for in the Answer with Counterclaims:

WHEREFORE, Google prays for judgment as follows:

a. A judgment dismissing Oracle’s Complaint against Google with prejudice;

b. A judgment in favor of Google on all of its Counterclaims;

c. A declaration that Google has not infringed, contributed to the infringement of, or
induced others to infringe, either directly or indirectly, any valid and enforceable
claims of the Patents-in-Suit;

d. A declaration that the Patents-in-Suit are invalid;

e. A declaration that Oracle’s claims are barred by the doctrines of laches, equitable
estoppel, and/or waiver;

f. A declaration that the Oracle’s claims are barred by the doctrine of unclean hands;

g. A declaration that this case is exceptional and an award to Google of its
reasonable costs and expenses of litigation, including attorneys’ fees and expert
witness fees; and

h. Such other and further relief as this Court may deem just and proper.

Ah. Unclean hands. This could get interesting.

What could Oracle be thinking? Android was independently developed except for "a subset" of Apache Harmony libraries:

13. The Android platform includes, among other things, the Android Software
Development Kit (“SDK”) and the Dalvik Virtual Machine (“VM”). The Dalvik VM relies on a
version of the Linux kernel for core system services such as security, memory management,
process management, network stack, and driver model, and as an abstraction layer between the
hardware and the rest of the software stack. The core class libraries of the Dalvik VM
incorporate a subset of Apache Harmony, a clean room, open source implementation of Java
from the Apache Software Foundation. Other than the Harmony libraries, the Android platform,
including, without limitation, the Dalvik VM, was independently developed by the OHA.

Here's some water under the bridge Google highlights, from the history of Java:

6. Upon information and belief, Sun also released the specifications for Sun’s Java
platform, including Sun’s Java virtual machine, under a free-of-charge license that can be found
at http://java.sun.com/docs/books/jls/third_edition/html/jcopyright.html and
http://java.sun.com/docs/books/jvms/second_edition/html/Copyright.doc.html, respectively. The
license allows developers to create “clean room” implementations of Sun’s Java specifications.
If those implementations demonstrate compatibility with the Java specification, then Sun would
provide a license for any of its intellectual property needed to practice the specification,
including patent rights and copyrights. One example of a “clean room” implementation of Sun’s
Java is Apache Harmony, developed by the Apache Software Foundation. The only way to
demonstrate compatibility with the Java specification is by meeting all of the requirements of
Sun’s Technology Compatibility Kit (“TCK”) for a particular edition of Sun’s Java.
Importantly, however, TCKs were only available from Sun, initially not available as open
source, were provided solely at Sun’s discretion, and included several restrictions, such as
additional licensing terms and fees. In essence, although developers were free to develop a
competing Java virtual machine, they could not openly obtain an important component needed to
freely benefit from Sun’s purported open-sourcing of Java.

7. Sun came under significant criticism from members of the open source
community, including Oracle Corp., for its refusal to fully open source Java. For example, in
August of 2006, the Apache Software Foundation (“ASF”), a not-for-profit corporation that
provides organizational, legal, and financial support for open source software projects, attempted
to obtain a TCK from Sun to verify Apache Harmony’s compatibility with Java. Although Sun
eventually offered to open source the TCK for Java SE, Sun included field of use (“FOU”)
restrictions that limited the circumstances under which Apache Harmony users could use the
software that the ASF created, such as preventing the TCK from being executed on mobile
devices. In April of 2007, the ASF wrote an open letter to Sun asking for either a TCK license
without FOU restrictions, or an explanation as to why Sun was “protect[ing] portions of Sun’s
commercial Java business at the expense of ASF’s open software” and violating “Sun’s public
promise that any Sun-led specification [such as Java] would be fully implementable and
distributable as open source/free software.” However, Sun continued to refuse the ASF’s
requests.

8. Oracle Corp., as a member of the Executive Committee (“EC”) of the Java
Community Process (“JCP”), the organization tasked with managing Java standards, voiced the
same concerns regarding Sun’s refusal to fully open source the Java platform. Later that year, in
December of 2007, during a JCP EC meeting, Oracle Corp. proposed that the JCP should provide
“a new, simplified IPR [intellectual property rights] Policy that permits the broadest number of
implementations.” At that same meeting, BEA Systems – which at the time was in negotiations
that resulted in Oracle Corp. purchasing BEA – proposed a resolution that TCK licenses would
be “offered without field of use restrictions . . . enabling the TCK to be used by organizations
including Apache.” Oracle Corp. voted in favor of the resolution.

9. Just over a year later, in February of 2009, Oracle Corp. reiterated its position on
the open-source community’s expectation of a fully open Java platform when it supported a
motion that “TCK licenses must not be used to discriminate against or restrict compatible
implementations of Java specifications by including field of use restrictions on the tested
implementations or otherwise. Licenses containing such limitations do not meet the
requirements of the JSPA, the agreement under which the JCP operates, and violate the

expectations of the Java community that JCP specs can be openly implemented.”

10. Only a couple of months later, in April of 2009, Oracle Corp. announced that it
would be acquiring Sun (renamed Oracle America after the acquisition was completed in January
of 2010). Since that time, and directly contrary to Oracle Corp.’s public actions and statements,
as well as its own proposals as an executive member of the JCP, Oracle Corp. and Sun (now
Oracle America) have ignored the open source community’s requests to fully open-source the
Java platform.

This history does make Oracle look bad, taking one position before it owned Java and the opposite the moment it obtained it. And here's a detail that matters in any copyright infringement litigation:

17. Google does not receive any payment, fee, royalty, or other remuneration for its
contributions to the Android Platform.

Here's another:

19. Although software applications for the Android platform may be written in the
Java programming language, the Dalvik bytecode is distinct and different from Java bytecode.
The Dalvik VM is not a Java VM.

As for patents, Google states pointblank that it doesn't infringe:

24. Google does not infringe any valid and enforceable claim of the
Patents-in-Suit,
either directly or indirectly.

And here's what matters in the patent context, repeated after each claim:

30. This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its
Complaint with knowledge of the facts stated in this Counterclaim.

That means they will be asking, as you saw in the relief section, that they think Oracle should have to pay them for the expense of answering and defending against the patent infringement litigation.

The Motion to Dismiss:

Google explains what it feels is wrong with the copyright claim:

In support of this motion, Google respectfully shows that the claim for copyright infringement asserted in Count VIII of the Complaint is legally deficient. Count VIII does not identify any specific infringing work that is the subject of the alleged copyright infringement claim, does not identify with any specificity the manner in which Google allegedly infringed any copyrights of plaintiff Oracle America, Inc. ("Oracle"), and does not identify with any specificity the basis for any claim of vicarious infringement, inducement of infringement, or contributory infringement. As a result, Count VIII fails to state a claim for relief upon which relief can be granted. In the event that Count VIII is not dismissed, Google requests in the alternative that the Court enter an order requiring Oracle to provide a more definite statement of its claim of copyright infringement that provides sufficient detail so that Google may reasonably prepare a response to Oracle's claim.

That's interesting, because I couldn't figure it out either. There is no way, from the complaint, to know why Oracle thinks it has such a claim. I thought we'd find out when Google responded, but they don't know either. Google explains further:

Count VIII of Oracle's Complaint seeks to assert a claim of copyright infringement against some unidentified portion of the Android "platform," which includes a variety of different types of materials, including software code, computer programs, specifications, reference materials and developer tools and resources. Count VIII, however, is so vague and general that it is impossible for Google to determine from the Complaint:

which portion or portions of the Android "platform" are the subject of the copyright infringement claim;

how Google allegedly infringed the copyrights in the two works identified in paragraph 11 and Exhibit H of Oracle's Complaint (the "Asserted Copyrights");

how any "users" of the Android platform may have allegedly infringed the Asserted Copyrights; or

how Google allegedly "encouraged, induced, caused, [or] materially contributed to" any acts of copyright infringement by any such other parties.

As a result of these deficiencies, Oracle's claim of copyright infringement fails to meet the pleading standards applicable to a claim of copyright infringement.

....Rather than allege facts to support its claim, Oracle instead pleads nothing more than a rote recitation of certain of the exclusive rights the Copyright Act provides in 17 U.S.C. § 106, with absolutely no supporting facts. Like the complaints in both Miller and Cutler, there is no factual allegation as to how any Google materials relating to Android allegedly infringe the Asserted Copyrights. See Compl. ¶ 39. Indeed, Oracle fails to provide any assertion as to which part of Android — which even Oracle concedes is an "operating system software platform" consisting of numerous types and extensive amounts of materials, Compl. ¶ 12 — allegedly infringes the Asserted Copyrights. See Compl. ¶ 39. Oracle's Complaint is precisely the type of bare recitation of elements that the Supreme Court warned against in Iqbal....

The Complaint also does not include any explanation or identification whatsoever of any alleged unlicensed acts of infringement of the Asserted Copyrights by any other party (including those for which Oracle seeks to hold Google vicariously liable) or any alleged acts of Google that constitute inducement of infringement or contributory infringement with respect to any such alleged unlicensed acts of others.

Oracle has to fill in the blanks, if the judge agrees the complaint is deficient, or the claim can indeed be dismissed. The idea in the law is that you have to tell what your claim is, so the other side has a chance to defend itself. If you recall, SCO was sanctioned for not telling what it claimed IBM did wrong, so that later when it wanted to add materials, it was not allowed to. The magistrate judge said they were like a store detective grabbing someone leaving the store, claiming they stole something, but not saying what, instead handing the person a catalog and telling them, "What you stole is in the catalog somewhere, so you find it. You know what you took."

That doesn't fly in copyright infringement litigation. You have to tell. But what is really interesting here is the tone and one twist. Android, Google points out, is open source. The whole world can read the source code, so there is no excuse for Oracle not to be specific:

The deficiencies in Oracle's copyright infringement claim are both striking and telling in view of the fact that Android is an open-source platform, and that all of the relevant source code and documentation for Android is currently — and has for some time been — publicly available. Oracle's inadequately-pleaded accusations are striking because Oracle has had complete access to every piece of information that is relevant to any possible assertion of copyright infringement, yet Oracle still failed to meet even the minimum pleading standards. Oracle's inadequately-pleaded accusations are also telling because, notwithstanding Oracle's access to the allegedly infringing work, Oracle has not articulated a legally sufficient claim that puts Google on notice of either the factual basis or the substance of Oracle's copyright claim.

I pick up from the tone that Google is mad, not worried about the outcome, and that it intends to fight to the death on Claim VIII. I might be reading too much into it, but I don't think so. The lawyers take their stance based on what the client has told them it wants and based on what they expect will be the outcome. Usually at this point in litigation, the filings are fairly bland, though. Both sides try to reveal as little as possible, because discovery is coming and they don't want to help the other side at all or get stuck in something they said too soon, knowing that cases morph as more information gets known. Here, the language is stronger than that, and I believe it indicates that Google believes that this motion has a good shot at being granted, or rather that it believes that it *should* be granted. It's pretty hard to predict what a judge will or won't do, particularly at the beginning, but Google isn't afraid. That's what I see.

Here's one detail that might explain why Google feels confident:

As to Oracle's copyright claim, the
Complaint alleges that "Oracle America owns copyrights in the code,
documentation, specifications, libraries, and other materials that
comprise the Java platform" and that "Oracle America's Java-related
copyrights are registered with the United States Copyright Office,
including those attached as Exhibit H." Compl. ¶ 11. Exhibit H
to the Complaint consists of certificates of copyright
registrations obtained by Sun for two identified works, named "Java
2 Standard Edition 1.4" and "Java Standard Edition, Version 5.0"
(the "Asserted Copyrights"). Compl. Ex. H. These registrations appear to relate to versions of certain Sun Java materials that
were released as open-sourced software in 2006 and 2007.

Obviously, if that proves to be so, the claim goes poof. There is no copyright infringement of open source code if you just use it according to the license. If that was a mistake on Oracle's part, then the final footnote tells us what Google thinks Oracle should do:

26
Oracle also contends that the "copyrightable" portions of the "Java platform" include, "without limitation code, specifications, documentation, and other materials." Compl. ¶ 38. To the extent Oracle believes that Google has infringed or is liable for infringement by any party of the copyrights in any works other than those that are the subject of the two registrations included in Exhibit H to the Complaint, Oracle should identify any and all such other works and the copyright registrations for them. See Sega, 1992 U.S. Dist. LEXIS 4621, at *4.

All Google says it can figure out about Oracle's claim is that there are apparently two types of copyright infringement in Oracle's mind: direct copying and vicarious liability for copying others have done:

Count VIII of the Complaint — the copyright infringement
claim — alleges generally that "[t]he Java platform contains
a substantial amount of original material (including without
limitation code, specifications, documentation, and other
materials) that is copyrightable subject matter." Compl. ¶ 38.
The two operative paragraphs of Count VIII then state as
follows:

39. Without consent, authorization, approval, or license,
Google knowingly, willingly, and unlawfully copied, prepared,
published, and distributed Oracle America's copyrighted work,
portions thereof, or derivative works and continues to do so.
Google's Android infringes Oracle America's copyrights in Java and
Google is not licensed to do so.

40. On information and belief, users of Android, including
device manufacturers, must obtain and use copyrightable portions of
the Java platform or works derived therefrom to manufacture and use
functioning Android devices. Such use is not licensed. Google has
thus induced, caused, and materially contributed to the infringing
acts of others by encouraging, inducing, allowing and assisting
others to use, copy, and distribute Oracle America's copyrightable
works, and works derived therefrom.

Compl. ¶¶ 39-40.

These paragraphs are mere conclusory statements apparently
intended to assert two different types of copyright infringement
claims against Google. First, Oracle apparently contends in
paragraph 39 that Google itself infringes the Asserted Copyrights
because "Google . . . copied, prepared, published and distributed
Oracle America's copyrighted work, portions thereof, or
derivative works and continues to do so." Compl. ¶ 39
(emphasis added). Second, Oracle apparently contends that Google is
vicariously liable for alleged infringement of the Asserted
Copyrights by others because "[o]n information and belief, users of
Android, including device manufacturers, must obtain and use
copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning
Android devices" and that, for reasons that are not explained,
Google allegedly "has thus induced, caused, and materially
contributed to the infringing acts of others by encouraging,
inducing, allowing and assisting others to use, copy, and
distribute Oracle America's copyrightable works." Compl. ¶ 40
(emphasis added).

"On information and belief" is a phrase you use in legal papers when you don't actually know in the "I can prove it" sense, but you think it's true. You heard it on the grapevine. Well, a bit more than that, but it's weaker than stating that this or that happened. It means often that the party saying it hopes to prove it after discovery lets them dig in to find evidence.

Oracle's Complaint asserts only that third parties infringe the Asserted Copyrights because "users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform." Compl. ¶ 40. Neither "obtaining" nor "using," however, are among the exclusive rights of a copyright owner under the copyright statute. See 17 U.S.C. § 106. For this reason alone, the claim of vicarious liability for infringement should be dismissed. Oracle also fails to identify any works of third parties that allegedly infringe the Asserted Copyrights, any specific acts of any third parties that allegedly infringe Oracle's copyright rights, or any acts of Google that allegedly induced or contributed to any such infringement. Oracle's claim against Google of vicarious liability for copyright infringement therefore fails to adequately state a claim for infringement.

So, who did what where? Specifics please, Google says, if the judge doesn't toss it out completely, which it hopes he will. Google probably has a clue or two what Oracle is probably thinking, but Oracle does have to flesh this out. The law is that Google isn't supposed to have to guess.

The best part of these filings is that Google explains Android, so technically we can follow along, with lots of footnotes. They don't do it for us; it's for the judge. But it's nice to be able to follow along, and I'm glad to see that Google realizes how important it is for the judge to understand the underlying tech. But it also indicates that Google feels quite confident of the ultimate outcome, in the sense that they do not believe they have done anything wrong with respect to copyrights. They put it all out on the table, therefore. Actually, it's open source, so it's out there already. Now it's time for Oracle to put its cards on the table too.

Here are all the filings, and you see two lawyers from King & Spalding have amended their notice of appearance:

TO NONPARTIES AND PLAINTIFF ORACLE AMERICA, INC. AND ALL
ATTORNEYS OF RECORD, PLEASE TAKE NOTICE that the following motion
will be heard at 8:00 A.M. on November 18, 2010, or as soon
thereafter as counsel may be heard, in Courtroom 9, 19th Floor of
this Court, located at 450 Golden Gate Avenue, San Francisco,
California before the Honorable William Alsup.

Defendant Google Inc. ("Google") will and hereby does move this
Court for an order dismissing Count VIII of plaintiff's "Complaint
For Patent And Copyright Infringement" under Rule 12(b)(6) of the
Federal Rules of Civil Procedure on the grounds that the claim for
copyright infringement asserted in Count VIII fails to state a
claim upon which relief can be granted. In the alternative, Google
will and hereby does move this Court, in accordance with Rule 12(e)
of the Federal Rules, for a more definite statement of the claim
asserted in Count VIII. In support of this motion, Google
respectfully shows that the claim for copyright infringement
asserted in Count VIII of the Complaint is legally deficient. Count
VIII does not identify any specific infringing work that is the
subject of the alleged copyright infringement claim, does not
identify with any specificity the manner in which Google allegedly
infringed any copyrights of plaintiff Oracle America, Inc.
("Oracle"), and does not identify with any specificity the basis
for any claim of vicarious infringement, inducement of
infringement, or contributory infringement. As a result, Count VIII
fails to state a claim for relief upon which relief can be granted.
In the event that Count VIII is not dismissed, Google requests in
the alternative that the Court enter an order requiring Oracle to
provide a more definite statement of its claim of copyright
infringement that provides sufficient detail so that Google may
reasonably prepare a response to Oracle's claim. This motion is
based on this Notice of Motion and Motion, the following Memorandum
of Points and Authorities, the pleadings and papers on file in this
action, any matters of which the Court may take judicial notice,
any evidence or argument presented at the hearing on the motion,
and any other matters the Court deems proper.

(4)

MEMORANDUM OF POINTS AND
AUTHORITIES

I. Introduction

On August 12, 2010, Plaintiff Oracle America, Inc. ("Oracle")
filed its Complaint For Patent And Copyright Infringement (Docket
No. 1) ("Complaint") against Google. The Complaint is directed at
Android, a publicly-available, open-source software platform that
anyone, anywhere, may freely use. Android was and continues to be
developed by Google with substantial contributions from others,
both volunteer technology enthusiasts and corporate partners. Since
its release in 2007, handset manufacturers and software developers
have rapidly adopted Android — which is designed specifically
for operation on devices with limited computing resources, such as
mobile phones — as their platform of choice for
next-generation mobile devices.

Count VIII of Oracle's Complaint seeks to assert a claim of
copyright infringement against some unidentified portion of the
Android "platform," which includes a variety of different types of
materials, including software code, computer programs,
specifications, reference materials and developer tools and
resources. Count VIII, however, is so vague and general that it is
impossible for Google to determine from the Complaint:

which portion or portions of the Android "platform" are the
subject of the copyright infringement claim;

how Google allegedly infringed the copyrights in the two works
identified in paragraph 11 and Exhibit H of Oracle's Complaint (the
"Asserted Copyrights");

how any "users" of the Android platform may have allegedly
infringed the Asserted Copyrights; or

how Google allegedly "encouraged, induced, caused, [or]
materially contributed to" any acts of copyright infringement by
any such other parties.

As a result of these deficiencies, Oracle's claim of copyright
infringement fails to meet the pleading standards applicable to a
claim of copyright infringement.

2

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The deficiencies in Oracle's copyright infringement claim are
both striking and telling in view of the fact that Android is an
open-source platform, and that all of the relevant source code and
documentation for Android is currently — and has for some
time been — publicly available. Oracle's inadequately-pleaded
accusations are striking because Oracle has had complete access to
every piece of information that is relevant to any possible
assertion of copyright infringement, yet Oracle still failed to
meet even the minimum pleading standards. Oracle's inadequately-
pleaded accusations are also telling because, notwithstanding
Oracle's access to the allegedly infringing work, Oracle has not
articulated a legally sufficient claim that puts Google on notice
of either the factual basis or the substance of Oracle's copyright
claim.

II. Argument

A. Factual Background

Because this dispute has not previously been before this Court,
Google submits the following brief discussion of Android. Google
believes that an explanation of the Android platform and the
relationship among certain of its major components is essential to
the understanding of the factual landscape underlying Oracle's
Complaint and, accordingly, this Motion. Google submits that all of
the facts stated herein are of public record, and are all matters
of which the Court may take judicial notice if necessary. Google
acknowledges, however, that the Motion is directed to the
sufficiency of Plaintiff's Complaint, and the sufficiency of the
pleading must be determined by the pleading itself.

1. The Android Platform

In November of 2007, Google and thirty-four other companies with
an interest in the mobile device market formed the Open Handset
Alliance ("OHA").1 The mission of the OHA — now made up
of seventy-eight companies — is to provide a better
experience for the world's three-billion mobile phone users by
developing and promoting the first open, complete, and free

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platform created specifically for mobile devices.2 The Android
Platform — the cornerstone of the OHA's mission — was
released the same month.3 As part of Android's first release, most
of the software code that makes up the Android Platform was
released to the public under a permissive open-source license known
as the "Apache Software License 2.0."4 Approximately one year later, in
September of 2008, the first full version of Android was released
to the public.5 One month after the first full release, in
October of 2008, the remainder of the Android source code was
released to the public under the same Apache license.6 Android has
undergone development by the OHA (including Google) and individual
developers since its release.7 The most recent release of the Android
platform — Version 2.2, Android's eighth release —
includes more than 11 million lines of computer code that supports
the operation of thousands of components.8 The key components of the
Android Platform include:

the Software Development Kit ("SDK") that contains software
tools and thousands of pages of documentation that assist
developers in creating applications (commonly referred to as
"apps") that run on Android;

the "kernel" that controls the basic aspects of the mobile
device, such as security and memory management;

4

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"libraries" that provide many basic programming functions,
including for example reading and writing files, using the World
Wide Web, and playing audio and video files;

an "application framework" that consists of libraries that
provide Android- specific programming functions, such as displaying
Android menus and dialogs and using phone-specific hardware such as
the dialer, global positioning system, and microphone;

"applications" that provide the functionality that users see,
such as the home screen, the phone dialer, and other utility
functions; and

the "Android Runtime," which provides services to applications,
such as executing Dalvik bytecodes, managing user notifications,
and being informed of events such as position changes, hardware
status changes, and incoming messages.9

All of the source code and documentation needed to implement
these core features of Android is publicly available for download
on the Android website.10

2. The Dalvik Virtual Machine

One aspect of the Android Platform referenced in Oracle's
Complaint — but not specifically accused in Oracle's
copyright infringement claims — is the Dalvik virtual machine
(the "Dalvik VM"). Compl. at ¶ 12. A "virtual machine," in a
general sense, is a software system that receives instructions,
usually in the form of software code that has been compiled into an
intermediate form, and outputs a different set of instructions that
are understood by the

5

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device on which the virtual machine is running.11 This is a common
technique in computer science, used by many programming
systems.12 Some famous examples include p-code,
Python, and the Java platform, all of which include a programming
language, a set of libraries and a virtual machine.13

There are several ways to create and execute Android software
applications. For example, developers can create software for
Android-based mobile devices in the C or C++ programming languages
that run directly on the Linux kernel, bypassing the Dalvik VM
entirely.14 Alternatively, developers can create
software applications for Android-based mobile devices in other
programming languages, such as the Java, Ruby or Scala programming
languages that run on the Dalvik VM.15 In this instance, these software
applications are converted into a set of intermediate instructions
— i.e., Dalvik "bytecode" or files in the Dalvik Executable
(.dex) format — through the use of the "dx" tool included
with the Android platform.16 These .dex files can be executed on any
mobile device with a Dalvik VM.17

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The Dalvik VM is a custom-built system that has been optimized
for running programs on battery-powered mobile devices that are
more limited than desktop computers in terms of computing and
memory resources.18 The Dalvik VM relies on the open-source
Linux kernel for underlying functionality such as threading and
low-level memory management.19 The Dalvik VM was independently
developed by Google and the OHA.

The class libraries of the Dalvik VM incorporate a subset of
Apache Harmony, a clean- room, open source implementation of Java
developed by the Apache Software Foundation and released under the
same permissive Apache license under which the OHA has released
most of Android.20

3. Oracle's Copyright Claim

Oracle alleges in the Complaint that it purchased Sun
Microsystems ("Sun") in January of 2010 and at that time became the
owner of Sun's patents and copyrights in the Java "platform."
Compl. ¶¶ 8-9. As to Oracle's copyright claim, the
Complaint alleges that "Oracle America owns copyrights in the code,
documentation, specifications, libraries, and other materials that
comprise the Java platform" and that "Oracle America's Java-related
copyrights are registered with the United States Copyright Office,
including those attached as Exhibit H." Compl. ¶ 11. Exhibit H
to the Complaint consists of certificates of copyright
registrations obtained by Sun for two identified works, named "Java
2 Standard Edition 1.4" and "Java Standard Edition, Version 5.0"
(the "Asserted Copyrights"). Compl. Ex. H. These registrations

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appear to relate to versions of certain Sun Java materials that
were released as open-sourced software in 2006 and 2007.21

Count VIII of the Complaint — the copyright infringement
claim — alleges generally that "[t]he Java platform contains
a substantial amount of original material (including without
limitation code, specifications, documentation, and other
materials) that is copyrightable subject matter." Compl. ¶ 38.
The two operative paragraphs of Count VIII then state as
follows:

39. Without consent, authorization, approval, or license,
Google knowingly, willingly, and unlawfully copied, prepared,
published, and distributed Oracle America's copyrighted work,
portions thereof, or derivative works and continues to do so.
Google's Android infringes Oracle America's copyrights in Java and
Google is not licensed to do so.

40. On information and belief, users of Android, including
device manufacturers, must obtain and use copyrightable portions of
the Java platform or works derived therefrom to manufacture and use
functioning Android devices. Such use is not licensed. Google has
thus induced, caused, and materially contributed to the infringing
acts of others by encouraging, inducing, allowing and assisting
others to use, copy, and distribute Oracle America's copyrightable
works, and works derived therefrom.

Compl. ¶¶ 39-40.

These paragraphs are mere conclusory statements apparently
intended to assert two different types of copyright infringement
claims against Google. First, Oracle apparently contends in
paragraph 39 that Google itself infringes the Asserted Copyrights
because "Google . . . copied, prepared, published and distributed
Oracle America's copyrighted work, portions thereof, or
derivative works and continues to do so." Compl. ¶ 39
(emphasis added). Second, Oracle apparently contends that Google is
vicariously liable for alleged infringement of the Asserted
Copyrights by others because "[o]n information and belief, users of
Android, including device manufacturers, must obtain and use
copyrightable portions of the Java platform or works

8

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derived therefrom to manufacture and use functioning
Android devices" and that, for reasons that are not explained,
Google allegedly "has thus induced, caused, and materially
contributed to the infringing acts of others by encouraging,
inducing, allowing and assisting others to use, copy, and
distribute Oracle America's copyrightable works." Compl. ¶ 40
(emphasis added).

The remainder of the allegations of Count VIII are general
allegations that merely recite additional generalities and claims
for different types of relief. Compl. ¶¶ 41-46.
Importantly, the Complaint does not include any identification of
any specific work created or distributed by Google that allegedly
infringes the Asserted Copyrights, nor does it even identify the
type of work (software code, reference materials, development kit
materials) that allegedly infringes. The Complaint also does not
include any explanation or identification whatsoever of any alleged
unlicensed acts of infringement of the Asserted Copyrights by any
other party (including those for which Oracle seeks to hold Google
vicariously liable) or any alleged acts of Google that constitute
inducement of infringement or contributory infringement with
respect to any such alleged unlicensed acts of others.

B. Oracle Fails To State A Claim For Copyright
Infringement.

1. The Applicable Pleading Requirements Are
Well-Settled.

The Federal Rules of Civil Procedure require that the complaint
must include a short and plain statement of the claim showing that
the pleader is entitled to relief. Fed. R. Civ. P 8(a)(2). The
United States Supreme Court's opinions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129
S. Ct. 1937 (2009), confirmed that, although detailed factual
allegations are not required, satisfying Rule 8(a)(2) requires the
complaint to plead sufficient factual matter, accepted to be true,
to state a claim to relief that is plausible on its face. Iqbal,
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555, 570). A
pleading that offers only labels and conclusions or a formulaic
recitation of the elements of a cause of action is insufficient.
Iqbal 556 129 S. Ct. at 1949. Courts in this district,
including this Court, have applied Iqbal and Twombly
to dismiss copyright infringement claims that merely state the
elements of the claims

A claim of copyright infringement requires the plaintiff to
prove (1) ownership of a valid copyright and (2) violation of one
of the exclusive rights granted by section 106 of the Copyright
Act, 17 U.S.C. § 106. See A&M Records, Inc. v. Napster,
Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Applying
Iqbal and Twombly, courts in this district have
recently dismissed claims of copyright infringement that did not
include any factual allegations regarding how the defendant
allegedly infringed the plaintiff's copyright. See Miller,
U.S. Dist. LEXIS 31534 at *9; Cutler v. Enzymes, Inc., No.
08-04650-JF, 2009 U.S. Dist. LEXIS 17942, at *8-9 (N.D. Cal. Feb
25, 2009).

In both Miller and Cutler, the complaints lacked
any facts that described in sufficient detail the infringing acts.
In Miller, the complaint merely alleged that the defendant Facebook
"reproduced and distributed" an infringing work, by, among other
things, publishing the work in their application directory,
allowing Facebook users to "search and view" the application.
See Miller, U.S. Dist. LEXIS 31534, at *4, *8-9. On
Facebook's motion to dismiss, this Court found such allegations
deficient, and concluded that the plaintiff must provide
"sufficient factual allegations to explain how defendant Facebook
copied, displayed, or distributed infringing copies" of the work,
and dismissed the complaint. See Miller, U.S. Dist. LEXIS
31534, at *9 (emphasis added). Similarly, the court in
Cutler dismissed a complaint for copyright infringement that
did not include any specific facts about the alleged acts of
infringement. Cutler, 2009 U.S. Dist. LEXIS 17942, at *9
(granting motion to dismiss because "[a]side from claims of
ownership, the complaint is devoid of any other specific facts
related to the Published Work and alleged copyright
infringement").

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Although promulgated before the Supreme Court issued
Iqbal and Twombly, the pleading forms in the Federal
Rules of Civil Procedure confirm the need to plead sufficient
factual support describing the acts of infringement. Fed. R. Civ.
P., Form 19 (2007). Form 19 — the form complaint for
copyright infringement — identifies the copyrighted work,
identifies the allegedly infringing work, and explains how
the alleged infringement occurred. See id. Specifically, the
form pleading suggests an allegation to the effect that "[a]fter
the copyright was issued, the defendant infringed the copyright by
publishing and selling a book entitled ____, which was copied
largely from the plaintiff's book." Id.

3. Oracle's Claim For Copyright Infringement Is
Deficient.

Oracle's Complaint fails to satisfy the standards set forth in
Iqbal, Twombly, and Form 19, and therefore dismissal
of Count VIII would be fully consistent with the decisions in
Miller and Cutler. This authority is clear —
Oracle's Complaint must provide facts that identify or describe (1)
the works in which a valid copyright is claimed;22 (2) the alleged acts of
infringement, including identifying the allegedly infringing work
or works, see Cutler, 2009 U.S. Dist. LEXIS 17942, at *9;
and (3) how any accused infringer has infringed and how any party
has induced or contributed to such infringement. See Miller,
U.S. Dist. LEXIS 31534, at *9. Because Oracle's Complaint fails to
provide any facts identifying any Google work that allegedly
infringes the Asserted Copyrights, and fails to provide any factual
allegations as to how Google or any third parties are allegedly
infringing, Oracle's Complaint does not state a claim for copyright
infringement.

Oracle's Complaint includes only three allegations relating to
direct copyright infringement: (1) that Oracle owns copyrights in
the Sun materials that comprise the Java platform and, more
specifically, in the Sun works that are the subject of the
copyright

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registrations shown in Exhibit H, Compl. ¶ 11; (2) that
Google has "copied, prepared, published and distributed Oracle
America's copyrighted work, portions thereof, or derivative
works and continues to do so," Compl. ¶ 39 (emphasis
added); and (3) that "Google's Android infringes Oracle America's
copyrights in Java and Google is not licensed to do so." Compl.
¶ 39. These allegations:

do not specify whether Google has allegedly copied and
distributed entire works of Sun / Oracle, "portions thereof" (and,
if so, what portions), or "derivative works";

do not identify any specific work or works of Google — or
even the types of materials — that Google has created by
allegedly copying, preparing, publishing, and distributing Sun /
Oracle's copyrighted work; and

do not provide any facts that suggest how any alleged
infringement has occurred.

Rather than allege facts to support its claim, Oracle instead
pleads nothing more than a rote recitation of certain of the
exclusive rights the Copyright Act provides in 17 U.S.C. §
106, with absolutely no supporting facts. Like the complaints in
both Miller and Cutler, there is no factual
allegation as to how any Google materials relating to
Android allegedly infringe the Asserted Copyrights. See
Compl. ¶ 39. Indeed, Oracle fails to provide any assertion as
to which part of Android — which even Oracle concedes is an
"operating system software platform" consisting of numerous types
and extensive amounts of materials, Compl. ¶ 12 —
allegedly infringes the Asserted Copyrights. See Compl.
¶ 39. Oracle's Complaint is precisely the type of bare
recitation of elements that the Supreme Court warned against in
Iqbal.

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Oracle's allegations also fail to meet the requirements of Fed.
R. Civ. P., Form 19, which requires factual pleadings that identify
both the infringing work, and how that work infringes. See
Fed. R. Civ. P., Form 19 ("the defendant infringed the copyright by
publishing and selling a book entitled _____, which was copied
largely from the plaintiff's book"). Oracle's Complaint does not
come close to even this form pleading. Oracle's Complaint does not
allege that any work of Google — Android or otherwise —
is a copy of, or is substantially similar to, any of Sun / Oracle's
copyrighted works. See Compl. ¶ 39.

This deficiency is compounded by the fact that "Android" as a
whole contains over 11 million lines of computer code, thousands of
pages of documentation, and thousands of components.24See
Compl. ¶ 39 ("Google's Android infringes Oracle America's
copyrights"). Oracle's Complaint provides no indication of what
part or parts of "Android," which could include code,
documentation, specifications, and many other types of materials,
allegedly infringe.

There is no justification for Oracle's failure to plead
sufficient facts to assert a copyright infringement claim. All of
the relevant materials, including the Android source code, has been
publicly available since the Android Open Source Project released
the code base in 2008.25 Every fact that Oracle could have
required to properly plead copyright infringement was available to
Oracle before it filed this lawsuit, and Oracle and its counsel
were required to make a good-faith evaluation of the merits of the
claim. See Fed. R. Civ. P. 11(b)(3). Because all of the
information Oracle requires is already publicly available, Oracle
cannot excuse its vague pleading by claiming that it needs
discovery to identify the accused works or acts.

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4. Oracle's Claim For Vicarious Copyright Liability Is Also
Deficient.

Oracle's assertion of vicarious copyright liability suffers from
the same deficiencies as its claim of infringement by Google. A
claim for vicarious liability for copyright infringement requires
the plaintiff to plead acts of infringement of the Asserted
Copyrights by a third party, and knowledge and inducement of those
acts by the defendant. See Perfect 10, Inc. v. Visa Int'l
Service Ass'n, 494 F.3d 788, 795 (9th Cir. 2007). Oracle has
not pleaded with any specificity any alleged acts of infringement
of the Asserted Copyrights by a third party or any acts of Google
that supposedly induced such infringement.

Oracle's Complaint asserts only that third parties infringe the
Asserted Copyrights because "users of Android, including device
manufacturers, must obtain and use copyrightable portions of the
Java platform." Compl. ¶ 40. Neither "obtaining" nor "using,"
however, are among the exclusive rights of a copyright owner under
the copyright statute. See 17 U.S.C. § 106. For this
reason alone, the claim of vicarious liability for infringement
should be dismissed. Oracle also fails to identify any works of
third parties that allegedly infringe the Asserted Copyrights, any
specific acts of any third parties that allegedly infringe Oracle's
copyright rights, or any acts of Google that allegedly induced or
contributed to any such infringement. Oracle's claim against Google
of vicarious liability for copyright infringement therefore fails
to adequately state a claim for infringement.

C. Google Is Entitled To A More Definite Statement.

If the Court declines to dismiss Count VIII of Oracle's
Complaint, Google respectfully requests that the Court order Oracle
to provide a more definite statement of its claims for copyright
infringement. Federal Rule of Civil Procedure 12(e) allows a party
to move for a more definite statement when a pleading is so vague
or ambiguous that the party cannot reasonably prepare a response.
Fed. R. Civ. P. 12(e). Although generally disfavored, this district
has found such relief to be appropriate in a copyright case where,
as here, the complaint is impermissibly

The Sega court noted that the complaint vaguely alleged
infringement of "other works" (among other things), and ordered
plaintiff to provide a more definite statement specifying "the
particular 'other works' which are subject to the copyright claim
and registration of those works, the acts constituting infringement
of those works, and the dates the infringement occurred."
Id. Similarly, Oracle's Complaint asserts that Google has
"copied, prepared, published, and distributed Oracle America's
copyrighted work, portions thereof, or derivative works." Compl.
¶ 39. Oracle should at a minimum be required to identify any
specific "copyrighted work" or "portion thereof" that Google
allegedly copied or distributed, any "derivative works" known to
Oracle that form the basis of its claim, as well as the acts
constituting the alleged infringement.26

Finally, as discussed above, Oracle's Complaint fails entirely
to identify any facts giving rise to Oracle's claim of vicarious
infringement based on alleged acts of infringement by third
parties. Oracle's more definite statement should include
specification of the alleged acts of such parties that Oracle
believes infringe its Asserted Copyrights and how such acts
infringe, as well as the acts of Google that Oracle believes make
Google liable for any such alleged infringement.

III. Conclusion

Oracle's Complaint includes impermissibly vague and broad
allegations of copyright infringement. In particular, the Complaint
does not specifically identify any allegedly infringing works of
Google, how Google has allegedly infringed Oracle's rights in the
two Sun works attached to the Complaint, or how Oracle believes its
claim of vicarious liability for copyright infringement arises. For
these reasons, Count VIII of Oracle's Complaint fails to meet
the

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minimum pleading standards required by the law, and fails to
properly put Google on notice of the substance of Oracle's claims.
Accordingly, the Court should dismiss Count VIII of the Complaint,
or, in the alternative, should require Oracle to provide a more
definite statement of its copyright claims.

See Android Developers, http://developer.android.com/index.html.
The overwhelming majority of the Android software source code and
its supporting documentation is publicly available. The exceptions,
such as low-level hardware drivers which are proprietary to
hardware makers, and proprietary third party (and Google) business
applications — none of which are mentioned in Oracle's
Complaint — are peripheral to the core Android platform.

Oracle's Complaint appears to identify two specific Sun works
that presumably are the subject of the copyrights on which Oracle's
claim is based, namely the works entitled "Java 2 Standard Edition
1.4" and "Java 2 Standard Edition, Version 5.0," which are the
works identified in the Asserted Copyrights shown in Exhibit H to
the Complaint.

The copyright registrations attached to Oracle's Complaint as
Exhibit H state that the Sun works that are the subject of the
registrations include at least both "computer code" and
"documentation and manuals." Complaint, Ex. H, Form TX 6-196-514 at
space 6(b) and Form TX 6-066-538 at space 6(b).

Oracle also contends that the "copyrightable" portions of the
"Java platform" include, "without limitation code, specifications,
documentation, and other materials." Compl. ¶ 38. To
the extent Oracle believes that Google has infringed or is liable
for infringement by any party of the copyrights in any works other
than those that are the subject of the two registrations included
in Exhibit H to the Complaint, Oracle should identify any and all
such other works and the copyright registrations for them. See
Sega, 1992 U.S. Dist. LEXIS 4621, at *4.